TENNESSEE BUREAU OFWORKERS' COMPENSATION INTHE COURTOFWORKERS' COMPENSATION CLAIMS AT KNOXVILLE
MARKELLIOTT, Employee, v. HERITAGEFOOD SERVICES, INC. d/b/a BELAIR GRILL, Employer, And THEHARTFORDINSURANCE CO., Carrier. ) DocketNo. 2017-03-0637 ) ) ) State File No. 38250-2017 ) ) ) JudgePamela B. Johnson ) )

COMPENSATIONORDERGRANTING SUMMARYJUDGMENT

This mattercame beforethe Courton October 1, 2018, on HeritageFood Services, Inc.'s Motion for Summary Judgment. The central legal issue is whether Heritage is entitled to summary judgment due to Mr. Elliott's failure to present evidence at this summaryjudgment stage supporting essential elements ofhis claim. For the reasons below, the Court holds that Heritage is entitled to summaryjudgment and dismisses Mr. Elliott's claimwithprejudice. History ofClaim On May 13, 2017, Mr. Elliott tripped over another employee and stumbled forward, hyper-extending his leg while working for Heritage. He received medical treatment following his injury and ultimately selected Dr. Rick Parsons from a physician panel offeredby Heritage. 1
Mr. Elliott saw Dr. Parsons on February 6, 2018. Dr. Parsons discussed with Mr. Elliott the results ofa lumbar spine MRI, which showed multiple level degenerative disk

1The submitted medical records indicated Mr. Elliott initially sought care at an emergency room a few days following the work incident but did not receive further medical care until January 2018 when he first sawDr. Parsons.

1disease and changes at L4-L5 with spinal stenosis at L6-S1. Dr. Parsons told Mr. Elliott, "I do not feel like there is anything going on inside the hip itself, I think it is mostlyjust coming from the back." He referred Mr. Elliott to a spine specialist and released him from care. Dr. Samuel Yoakum examined Mr. Elliott on April 27 and diagnosed a workrelated incident with complaints ofback and thigh pain, right hip flexor tendinopathy, and multifactorial degenerative lumbar spinal stenosis with questionable radiculopathy. Dr. Yoakum reviewed the lumbar MRI and x-ray findings with Mr. Elliott, stating, "His hip mechanism could be consistent with a hip flexor strain. The fact that it has been 11 months since his work-related incident and he has had no workup or treatment on this area makes it challenging to determine timeline causation 1 00%." Dr. Yoakum referred Mr. Elliott to physical therapy and assigned temporary restrictions for the hip flexor strain. He also referred Mr. Elliott back to Dr. Parsons, noting, "I will defer to Dr. Parsons with regard to final determination on the hip flexor strain." Dr. Yoakum determined Mr. Elliott's back issues were not caused by the work-related incident and recommendedMr. Elliott seektreatment outsidethe workcomp system. On May 8, Dr. Parsons completed a Worklink report for a "R hip" injury and referred Mr. Elliott to "PT." Dr. Parsons did not mark whether the right hip injury "[Was] WorkRelated," "[Was] Not WorkRelated," or "CanNotBeDetermined."
Mr. Elliott's counsel wrote Dr. Parsons on September 24, asking him to "state, within a reasonable degree of medical certainty, as to whether or not the issue[s] regarding Mr. Elliot[t]'s hip are related to his workers' comp injury ofMay 13, 2017." Dr. Parsons handwrote, "CANNOT BEDETERMINED UNTIL THE MRI HAS BEEN DONE." (Emphasis in original).
Procedural History After Heritage denied his claim, Mr. Elliott filed a Petition for Benefit Determination and Request for Expedited Hearing seeking additional medical treatment including a right hip MRI, outstanding medical bills and mileage expenses, and temporary disability benefits. Atthe Expedited Hearing stage, the Courtheld Mr. Elliott failed to present sufficient evidence demonstrating that he was likely to prevail at a hearing on the merits on entitlement to additional medical treatment and denied his request for a right hip MRI. The Court also held Mr. Elliott failed to present sufficient evidence regarding payment of outstanding medical bills, mileage expenses, and temporary disabilitybenefits. Heritage then filed this Motion for Summary Judgment, along with a Statement of Undisputed Facts and a Memorandum ofLaw. It argued there are no genuine issues of dispute as to any material fact. Specifically, it asserted Mr. Elliott cannot satisfy his
2burden ofproofthat his injury arose primarily out ofand in the course and scope ofhis employment. It contended no physician has stated to a reasonable degree of medical certainty that Mr. Elliott's work primarily caused any injury. In contrast, it emphasized the authorized treating physicians, whose opinions are presumed correct, have not determined that Mr. Elliott's alleged injury arose primarily out ofand in the course and scope ofhis employment.
Mr. Elliott filed a response and argued genuine issues ofmaterial fact exist. Mr. Elliott argued Heritage denied the physical therapy and right hip MRI. He further asserted that Dr. Parsons cannot determine whetherhis right hip complaints are relatedto the workincidentuntil arighthip MRI is performed. 

### Heritage's ObjectionstoMr.Elliott'sResponse andAttachments
Mr. Elliott's response contained twelve-numbered paragraphs with only paragraphs 6, 8, 12, and 13 containing partial citations to the record. Mr. Elliott's citations refer to exhibits 1through 4. However, the attached exhibits are unnumbered but include Heritage's exhibits markedB and C.
At the hearing, Heritage objected to Mr. Elliott's response and attachments on the bases that he failed to properly cite to the record and that his response and attachments included unsupported factual allegations containing hearsay and speculation and lacked authentication. The Courttookthe objections underadvisement. The Court sustains the objection as to Mr. Elliott's responsive pleading, finding that Mr. Elliott's response contained unsupported factual allegations. To the extent the factual allegations are unsupported by proper citation to the record, the Court will considerthe allegations as argument only, not evidence. As to the attachments, the Court overrules the objection as to the May 2, 2018 Worklink record and the September 24, 2018 letter, finding the attachments are signed by a physician authenticating the letters and are not excluded by the hearsay rule under Tennessee Rules ofEvidence 803. The Court sustains the objection as to the January 8, 2017 letter as the letter is unsigned, incomplete, lacks authentication, andrequires speculation. 

### Findings ofFactand Conclusions ofLaw Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgmentas amatteroflaw." Tenn. R. Civ. P. 56.04 (2018). Heritage must do one of two things to prevail on its motion for summary judgment: (1) submit affirmative evidence that negates an essential element of Mr.
3Elliott's claim, or (2) demonstrate that Mr. Elliott's evidence is insufficient to establish an essential element ofhis claim. Tenn. Code Ann. § 20-16-101 (2017); 

### see also Rye v. Women's Care Ctr. ofMemphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If Heritage is successful in meeting this burden, Mr. Elliott "may not rest upon the mere allegations or denials ofits pleading." !d. at 265. Rather, he mustrespond byproducing evidencethat sets forth specific facts showingthere is a genuine issue for trial. !d.; Tenn. R. Civ. P. 56.06. He must do more than simply show that there is some metaphysical doubtas to thematerial facts. 

### Rye, at 265.
To determine whether summary judgment is appropriate, the Court looks to whetherthere are genuine issues ofmaterial fact onthe essential elements ofMr. Elliott's claim. In doing so, the Courtmustreviewthe evidence in the lightmost favorable to Mr. Elliott as the nonmovingparty and draw all reasonable inferences favoring him. 

### Payne v. D 

### andD 

### Elec., 2016 TNWrkCompApp BdLEXIS 21, at

## *12 (May4, 2016).
The Court finds 

### Payne analogous to this case. In 

### Payne, the employee allegedly slipped or stepped offa stair and felt a pop and pain in his left foot in the course and scope ofhis work. He sought medical treatment and the attending physician suspected poorly controlled diabetes and underlying osteomyelitis. The employer denied the claim on employee's failure to produce medical evidence indicating that he suffered a workrelated injury because ofhis employment. Following an expeditedhearing, the trial court awarded medical benefits and the employer provided a panel of physicians. 

### See generally, Payne.
The panel doctor determined the employee suffered from a pre-existing condition that was aggravated by the employee's work injury and noted it was not likely the work injury created the whole problem. The employer denied further benefits. At a second expedited hearing, the trial court denied further benefits on grounds ofcompensability, finding the employee did notestablish by expert medicalproofthathis left foot condition arose primarily out ofand in the course and scope ofemployment. The employee did not appeal thetrial court's order. !d.
The employerthen filed a summaryjudgmentmotion because the employee failed to submit evidence establishing he suffered an injury or aggravation arising primarily out ofand occurring in the course and scope ofemployment. The trial court denied summary judgment, determining that while the employee had not yet presented evidence ofthe compensability of his claim, a genuine issue of material fact existed concerning the causationopinion the employerrelied on. The employer appealed. !d.
On appeal, the Workers' Compensation Appeals Board reversed the trial court's denial ofthe employer's summaryjudgment motion and remanded the case to the trial court to enter an order granting summaryjudgment and dismissing the employee's claim on the merits. In doing so, the Appeals Board found the employee's response did not 4include a medical opmwn stating, suggesting, or implying that employee's left foot condition orthe aggravation ofhis pre-existingcondition aroseprimarily out ofand inthe course and scope ofthe employment. !d. at *I0-II. TheAppeals Boardconcluded, [W]ith thepassage ofTennessee CodeAnnotated section 20-I6-I01 andthe reexamination ofthe summaryjudgment standard in

### Rye, theburden falls to the nonmovingparty to produce evidenceto establishthe essential elements ofthe nonmoving party's claim in response to the motion for summary judgment. "The focus is on the evidence the nonmoving party comes forward with at the summaryjudgment stage, not on hypothetical evidence that theoretically could be adduced

... at a future trial." Thus, in this case, the trial court erred in determining that Dr. Chrostowski's failure to apportion causation "presents a genuine issue ofmaterial fact." The fact that Employee may obtain an opinion from Dr. Chrostowski, or any other physician, apportioning a greater percentage of causation to the work incident than to Employee's pre-existing condition is ofno consequence if such opinion is notpresentedatthe summaryjudgmentstage. !d. at *II-I2 (internal citations omitted). Here, the Court finds Heritage demonstrated that Mr. Elliott's medical proof is insufficient to establish an essential element ofhis claim. Dr. Parsons, an authorized treating physician, told Mr. Elliott, "I do not feel like there is anything going on inside the hip itself, I think it is mostlyjustcoming from the back[,]" and referredhim to a back specialist, Dr. Yoakum. Thereafter, Dr. Yoakum evaluated Mr. Elliott and determined, "His hip mechanism couldbe consistentwith a hip flexor strain. The fact that it has been II months since his work-related incident and he has had no workup ortreatment on this area makes it challenging to determine timeline causation 100%." Dr. Yoakum referred Mr. Elliott back to Dr. Parsons, noting, "I will defer to Dr. Parsons with regard to final determination on the hip flexor strain." In response to Mr. Elliott's request for a causation opinion as to his hip complaints, Dr. Parsons advised he could not determine causationuntil theMRIwas completed.
The Court finds Mr. Elliott cannot rely on the argument that the recommended MRI may show a causal relationship between his hip complaints and his work incident. Such argument is speculative and an attemptto forecast future proof. Instead, Mr. Elliott must come forward now, at this summary judgment stage, with expert medical proof demonstrating his hip injury arose primarily out ofand in the course and scope ofhis employment with Heritage. He has not done so. Therefore, the Court concludes no genuine issue ofmaterial fact exists and summaryjudgment is appropriate as a matter of law.

5IT IS, THEREFORE, ORDERED as follows: 1. Heritage's Motion for Summary judgment is granted, and Mr. Elliott's claim against Heritage for the requested workers' compensation benefits is dismissed on the merits withprejudiceto its refiling.
2. Heritage shallprepare and file a statistical data form (SD2) with the Court Clerk at wc.courtclerk@tn.govwithinten business days ofentry ofthis order.
3. The filing fee for this case is taxed to Heritage under Tennessee Compilation Rules and Regulations 0800-02-21-.07.
4. Absent an appeal, the order shallbecome final thirty days after issuance.
ENTERED October5, 2018.**P~MELA** B. JOHNSON,JUDGE CourtofWorkers' Compensation Claims

CERTIFICATE OFSERVICE
I hereby certify that a true and correct copy ofthe Compensation Order Granting Summary Judgment was sent to the following recipients by the following methods of service on October5, 2018.
Name Certified Mail John R. Rosson, Employee'sAttorney Joseph Ballard, Employer's Attorney Fax Email Service sent to: X rossonlaw@aol.com rjoyce1960@aol.com
X joseph.ballard@thehartford.com 

# _& )JuUk--'**PENN UM,**  CourtClerk WC.CourtClerk@tn.gov
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